Supreme Court Passes on Case on Tuition Break for Illegals

A California law that gives illegal aliens a break on college tuition and resembles a controversial proposal before Congress will not get closer scrutiny by the Supreme Court.

The justices announced Monday they will not hear arguments in a case brought by thousands of California college students who pay out-of-state tuition rates. The students object to a state law allowing their classmates, who are illegal aliens, the conditional ability to pay in-state or "resident" rates.

The dispute comes as some lawmakers on Capitol Hill continue to press for passage of the DREAM Act. The legislation allows illegal aliens to earn citizenship by attending college or enlisting in the military.

While the case centers on a California law designed to benefit illegal immigrants, the state's legal case is very similar to the arguments used by other states, namely Arizona, which have pursued legislation to crack down on illegal aliens. In each instance, the states claim that its law is not preempted by Congress.

The student opponents of California's 2001 measure contend the tuition break directly conflicts with the main federal immigration law passed five years earlier.

"In the absence of guidance from this court, numerous states have circumvented federal law in this area with impunity," lawyer Kris Kobach wrote in February, asking the justices to take the case. "They have done so by urging a reading of federal law that reduces it to a dead letter and is contrary to every expression of congressional intent on the matter."

Kobach contends that federal immigration law prohibits the special kind of residency tuition break California passed unless the benefit is also available to all Americans. In other words, the California measure can only be allowed if all U.S. residents equally qualify for the in-state tuition rate specifically extended to illegal aliens.

In November, the California Supreme Court upheld the state law concluding "the exemption is not based on residence in California. Rather, it is based on other criteria." It pointed to situations where non-resident students could nonetheless qualify for the "resident" tuition status.

For example, any student with three years' attendance at a California high school qualifies for the break regardless of his or her home address. This would cover students who crossed the state line to attend a California school, boarding students whose parents live in a different state or students who moved away but wanted to return for college.

"If Congress had intended to prohibit states entirely from making aliens eligible for in-state tuition, it could have easily done so," Justice Ming Chin wrote for a unanimous court.

Late last year, the House of Representatives passed the DREAM Act that would among other things repeal the in-state tuition ban found in the 1996 immigration law. Senate backers have been unsuccessful in getting the bill to President Obama who fully backs the measure. Opponents have blasted the measure as an amnesty for people who've illegally entered the country.

Kobach says the inability of federal lawmakers to pass the DREAM Act "has not dissuaded some state legislatures from taking an alternative path: simply circumventing federal law."

Nebraska, New Mexico, New York, Texas, Utah and Washington are some of the other states that have passed similar laws. The difference between "resident" and "nonresident" tuition for four years of undergraduate studies at Cal-Berkeley, for example, is $91,512.

The justices offered did not explain why they decided against taking the case.